US District Court Judge Henry Hudson ruled today that a lawsuit filed in March by Virginia Attorney General Ken Cuccinelli can proceed. The case, Commonwealth of Virginia v. Sebelius 10-cv- 00188, asserts that the Patient Protection and Affordable Care Act violates the Constitution’s Commerce Clause by requiring individuals to buy insurance or face a tax.

Virginia Lawsuit and Health Insurance Mandate

The Commerce Clause (Article I, Section 8, Clause 3) states that the US Congress shall have the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

Under the new health care law, Americans will be required to purchase health insurance or face a penalty of 2.5% of their gross income. Judge Hudson is allowing the suit to continue because, he says, “No court has ever ruled on whether it’s constitutional to require Americans to purchase a product.”

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Throughout its history, the Commerce Clause has been used primarily to regulate the interstate sale of tangible products. This would be the first time the law has been extended to services such as health insurance, which would obviously benefit from increased sales because of the federal requirement.

"While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate -- and tax -- a citizen's decision not to participate in interstate commerce," Hudson wrote in his 32-page decision.

The Virginia General Assembly has passed its own legislation this year which exempts state residents from the federal coverage mandate.

The defendant, the Health and Human Services Department overseen by Secretary Kathleen Sebelius, argues that at some point everyone will need medical services and is therefore either a “current or future participation in the health care market”. This, she says, allows the government to tax such services.

Other states have also challenged the constitutionality of the new healthcare law, but Virginia’s is the first to go before a judge. According to the Washington Post, a full hearing is scheduled for October.